HB 370-AWCB CONTROLLED SUBSTANCE PRESCRIPTIONS  1:42:57 PM CHAIR KELLER announced that the first order of business would be HOUSE BILL NO. 370, "An Act relating to employer drug testing; requiring the Alaska Workers' Compensation Board to adopt regulations relating to the prescription of controlled substances to employees; and limiting the prescription of controlled substances to employees." [Before the committee was CSHB 370(L&C).] 1:43:00 PM KONRAD JACKSON, Staff, Representative Kurt Olson, Alaska State Legislature, speaking on behalf of Representative Olson, chair of the House Labor & Commerce Standing Committee, sponsor, informed the committee HB 370 is an act relating to employer drug testing and requires the Alaska Workers' Compensation Board to adopt regulations related to the prescription of controlled substances. He noted that two sections of the bill are especially important. One section directs that should an injured worker require a long-term opiate prescription, after 90 days he/she may be subject to a random urinalysis test to confirm that they are taking the medication, and to call for an adjustment in medication, if needed. It has been found that after 90 days or longer, a patient may not be taking the prescriptive dose, and adjustments are needed. The intent is "to really help get those injured workers well sooner." Mr. Jackson said further studies indicate that the long-term use of opioids can lead to addiction, and thus there is a need to ensure that workers receive the medication at the proper strength. The other important part of the bill deals with the length of time for which a Schedule 1 drug [defined by the U.S. Controlled Substances Act] is prescribed, and recommends reducing the time period to a 30-day prescription. He stressed that the focus of the proposed legislation is on the return to good health of the injured worker for the purpose of returning him/her to productivity. 1:46:53 PM REPRESENTATIVE LEDOUX asked whether an employer is required to pay for more than a 90-day prescription of a controlled substance. MR. JACKSON explained that after 90 days of taking a Schedule 1 opiate, a drug test may be administered to the worker. If the worker is not taking the drug, future prescriptions would not be paid for under the assumption that is the patient's choice and a change in medication is warranted. Again, the intent is to help doctors determine the injured worker's level of pain and the proper prescription. CHAIR KELLER said he was convinced that there is a problem in the state related to the use of painkillers, noting that Alaska has the highest cost for Workers' Compensation. REPRESENTATIVE LEDOUX asked whether a worker is limited to a prescription of 30 days or if there can be an additional prescription after seeing a doctor. MR. JACKSON said after another visit with the doctor, an additional prescription can be written. He pointed out that these steps will "increase some of the oversight and stop the large quantities of the opiates from being ... in circulation." 1:51:05 PM REPRESENTATIVE GRUENBERG asked Mr. Jackson whether the drug Nuvigil is one of the drugs referred to in the bill on page 2, lines 7-14, subsections (p) and (q). MR. JACKSON said he did not know. REPRESENTATIVE GRUENBERG disclosed that he is prescribed the drug Nuvigil and may have a conflict of interest. 1:52:35 PM REPRESENTATIVE LEDOUX posed a scenario in which an injured worker was instructed by a doctor to reduce the amount of medication whenever possible, and the worker did, but later there was a need to return to the higher dosage. She said her understanding of the bill is that if a worker tests negative due to the lower dosage, the employer may not pay for a return to the higher dosage. MR. JACKSON explained that the bill reduces the prescription to a 30-day supply to ensure closer interaction between patient and physician. He opined that all doctors wish patients to reduce the prescribed dosage as soon as possible to help avoid addiction. However, after 90 days, the worker should again talk with a doctor as it is expected that the worker would not need another prescription. The idea [of the bill] is to encourage patients to restrict their use of "heavy narcotics" as soon as possible due to possible addiction problems and the high cost of the drug to the Workers' Compensation system. CHAIR KELLER asked whether a worker who is selling his/her drugs could take one pill to pass the random drug test. MR. JACKSON said that is a possibility and deferred to the Division of Worker's Compensation, Department of Labor & Workforce Development, for information on regulations related to the administration of the test. 1:56:58 PM REPRESENTATIVE LEDOUX questioned whether the sponsor's concern is about doctors who are overprescribing medications, and if so, suggested the committee discuss the problem with the State Medical Board, Department of Commerce, Community & Economic Development. She said she did not see the difference between an injured worker receiving Workers' Compensation and an injured person who does not. MR. JACKSON agreed the focus of HB 370 is on workers who are receiving Workers' Compensation. The societal problem of addiction and the overuse of opiates should be a serious concern of everyone; however, this bill seeks to reduce the high cost of drugs to Workers' Compensation. CHAIR KELLER mentioned a bill currently in the House Finance Committee which addresses the problem from a different approach. REPRESENTATIVE LEDOUX asked whether state medical organizations have commented on the bill. MR. JACKSON expressed his belief that the sponsor has not received any negative comments from the medical community. Concerns have been received from labor organizations, although there has been previous testimony in support of the bill in its current form from representatives of AFL/CIO and Teamsters. 1:59:47 PM REPRESENTATIVE GRUENBERG asked about the possible self- incrimination implications of the bill. He suggested that the committee hear testimony from the Public Defender Agency, Department of Administration. MR. JACKSON assured the committee that the bill is not an attempt to search for criminals but is focused on getting workers the level of medication needed. 2:01:46 PM AESHA PALLESEN, Assistant Attorney General, Labor and State Affairs Section, Civil Division (Anchorage), informed the committee that the language in the bill states that the negative drug test could only be used for the purpose of establishing that the employer may be able to refuse to pay for a future prescription of the drug. REPRESENTATIVE GRUENBERG was not satisfied by the foregoing information because, although other uses are not allowed by the language in the bill, other uses must be prevented under Alaska law. He asked if the bill provides that the information is confidential, and whether the information could "become the fruit of the poisonous tree." MS. PALLESEN advised that the state currently has a "pretty comprehensive scheme addressing drug and alcohol testing by employers" and the proposed subsection of the bill would be subject to all of the conditions and restrictions [currently in law] including a confidentiality provision. To Representative Gruenberg's second question, she answered that there may be concerns about the criminal implications of the bill if the test result information was used for criminal purposes, but the limitation on the allowed use of the negative drug test is intended to prevent that. REPRESENTATIVE GRUENBERG urged for a full exploration of the possible implications to physician/patient privilege, and to "the conduit theory." 2:04:19 PM MIKE MONAGLE, Director, Central Office, Division of Workers' Compensation, Department of Labor & Workforce Development, pointed out that Workers' Compensation is generally exempt under the Health Insurance Portability and Accountability Act of 1996 (HIPPA); therefore, the communication between those conducting the testing and the employer does not have the same HIPPA protection that "general health" would have. Typically, in a Workers' Compensation action, the term "employer" includes the employer's insurance company or its claims administrator, thus testing under the proposed provision would be through the case manager or claims administrator for the employer's insurance company. CHAIR KELLER said HB 370 would be set aside for further testimony. [The committee returned to HB 370 later in the meeting.] HB 370-AWCB CONTROLLED SUBSTANCE PRESCRIPTIONS  4:10:10 PM CHAIR KELLER returned the committee's attention to the further discussion of HB 370. [Before the committee was CSHB 370(L&C).] KONRAD JACKSON, staff, Representative Kurt Olson, Alaska State Legislature, speaking on behalf of Representative Olson, chair of the House Labor & Commerce Standing Committee, sponsor, said at the request of the committee, he contacted the Office of Public Advocacy, Department of Administration, to answer questions. 4:11:26 PM RICHARD ALLEN, Director, Office of Public Advocacy, Department of Administration, offered to answer questions. MR. JACKSON recalled that Representative Gruenberg asked about "fruit of the poison tree" and the possible criminal implications of the drug testing described in section 1 of HB 370. REPRESENTATIVE GRUENBERG asked whether there are criminal implications within the language of HB 370. MR. ALLEN answered that it is "a real stretch to try to come up with any sort of scenario where this would play out." There is the possibility that if a person who had tested negative was later charged with the distribution of a narcotic, the test might be used as some sort of circumstantial evidence. 4:14:18 PM CHAIR KELLER closed public testimony on HB 370. 4:14:24 PM REPRESENTATIVE LYNN moved to report CSHB 370(L&C) out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, CSHB 370(L&C) was reported from the House Judiciary Standing Committee.